A Bad Omen For Liberty & The Rule Of Law

Mukasey A Bad Omen For Liberty and The Rule Of Law

By Gary Benoit
December 14, 2007
TheNewAmerican

By confirming Michael Mukasey as attorney general on November 9, the U.S. Senate demonstrated to the world that it is willing to tolerate the reported use of torture by the CIA against terrorist suspects. The Senate also demonstrated its willingness to allow the president to use his presumed authority as commander-in-chief to trample on laws passed by Congress.

What else can be concluded after Mukasey’s dodging and disturbing testimony before the Sen
ate Foreign Relations committee prior to his nomination being approved by the committee and then the full Senate?

Mukasey, a retired federal judge, was repeatedly asked during his confirmation hearings if waterboarding and other harsh interrogation techniques reportedly practiced by the CIA against terrorism suspects constituted torture.

He repeatedly refused to answer the question, though he did at least acknowledge that torture was unconstitutional. He later sent a letter to Democratic members of the committee calling waterboarding "repugnant" but adding that he could not judge its legality until given access to classified information about interrogation techniques.

Incredible!

One does not need access to classified information to know that waterboarding is torture. Former U.S. Navy instructor Malcolm Nance, who trained U.S. forces to resist harsh interrogation techniques including waterboarding, wrote on the Small Wars Journal blog that waterboarding is torture "without doubt."

Though waterboarding is often described by the media as simulated drowning, Nance points out that it is "not a simulation" at all but a "controlled drowning."

In waterboarding, Nance explains, the lungs are actually filling with water. There is no way to simulate that. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject.

A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Nance continues:

"Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration — usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death."


Syndicated columnist Joseph Galloway, coauthor of We Were Soldiers Once … and Young, recently described a waterboarding he had witnessed as a young reporter covering the Vietnam War. (His character is depicted in the movie We Were Soldiers.) According to Galloway:

"When you hog-tie a human being, tilt him head down, stuff a rag in his mouth and over his nostrils and pour water onto the rag slowly and steadily to the point where his lungs start to fill with water and he's suffocating and drowning, that is torture."

The waterboarding witnessed by Galloway was performed by South Vietnamese Army troops against a Viet Cong suspect.

"The victim was taken to the edge of death," Galloway recalled. "His body was wracked with spasms as he fought for air. The soldier holding the five-gallon kerosene tin filled with muddy water from a nearby stream kept pouring it slowly onto the rag, and the victim desperately sucking for even a little air kept inhaling that water instead."

"Did the suspect talk?" Galloway rhetorically asked. "I’m sure he did. I'm sure he told his torturers whatever he thought they wanted to hear, whether it was true or not."

Galloway, however, was not present to witness that since one of the American Army advisers attached to that South Vietnamese unit, who had walked away before the waterboarding began, came back to tell Galloway he had to leave.

Why did he have to leave? Why did the American advisers walk away?

"That adviser knew that water torture was torture; he knew that it was outlawed by the Geneva Convention; he knew that he couldn’t be a party to it; and he knew that he didn't want me to witness such brutality," Galloway wrote in his column.

Evan Wallach, who teaches the law of war at Brooklyn Law School and New York Law School, also knows that waterboarding is torture.

In a recent op-ed in the Washington Post entitled "Waterboarding Used to be a Crime," he noted that the U.S. government has in the past "severely punished" those who applied waterboarding, citing as one example the convictions of “several Japanese soldiers for waterboarding American and Allied prisoners of war” during World War II.

Wallach noted in the same column that he was judge advocate general of the Nevada National Guard, in which capacity he annually lectured the 72nd Military Police Company about their legal obligations when guarding prisoners.

"Even though I left the unit in 1995," he wrote, 'I like to think that some of my teaching had carried over when the 72nd refused to participate in misconduct at Iraq’s Abu Ghraib prison."

That is a wonderful thought: Evan Wallach may indeed have left a lasting imprint on the 72nd for the better.

A terrifying thought is that our new attorney general — the top law enforcement officer in the United Sates, the law enforcement official who will now advise the White House and intelligence agencies on "permissible" interrogation techniques — presumably cannot figure out that waterboarding is torture.

I say "presumably," of course, because he must know that waterboarding is torture, despite the fact that he repeatedly refused to identify it as such during his confirmation hearings.

And there are other terrifying thoughts regarding those who now operate the levers of power in Washington. The senators who voted to approve Mukasey’s nomination — all 46 Republicans who voted plus 6 Democrats and 1 independent — must know that waterboarding is torture.

And so must President George W. Bush, who has unequivocally stated that "this government does not torture people," without saying one way or the other if waterboarding is one of the so-called harsh interrogation techniques used by the CIA against terrorist suspects.

Torture is anathema to American values and must never be tolerated by a free society.

Mukasey’s Senate testimony regarding waterboarding by itself should have disqualified him for the post of attorney general.

But there is another major problem with his testimony that should be addressed, and that is his incredible assertion that the president can trump laws passed by Congress in the interest of national security.

Asked by Senator Patrick Leahy (D-Vt.) if it is illegal for the president to operate outside of laws passed by Congress, Mukasey responded: "That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country."

Asked by Leahy if the president can "put someone above the law by authorizing illegal conduct," Mukasey said:

"If by illegal you mean contrary to a statute but within the authority of the President to defend the country, the President is not putting somebody above the law, the President is putting somebody within the law."

And so if Congress were to pass a law stating that waterboarding is torture, and to do so with enough votes to override a presidential veto, the president could still presumably ignore this law simply by viewing it as a national security matter, based on our new attorney general’s "understanding" of presidential powers.

Shame on Mukasey for twisting the Constitution to this incredible extent. Shame on President Bush for nominating him. Shame on the senators who approved the nomination.

If there is any "good" news about Judge Michael Mukasey’s rise to attorney general, it is that it provides further incentive (as if more were needed!) for freedom-loving American to get informed and involved— and restore the rule of law under our Constitution — before it is too late.

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